Nichols v. Dexter

• Decision Date: 02 November 1915
• Docket Number: Case Number: 5690
• Citation: 152 P. 817,1915 OK 848,52 Okla. 152
• Parties: NICHOLS et al. v. DEXTER.
• Court: Oklahoma Supreme Court

1915 OK 848

152 P. 817

52 Okla. 152

NICHOLS et al. v. DEXTER.

Case Number: 5690

Supreme Court of Oklahoma

Decided: November 2, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Presentation for Review--Denial of New Trial. Where the overruling of the motion for a new trial is not assigned as error in the petition in error, errors alleged to have occurred during the trial are not properly presented, and cannot be reviewed.

2. RECEIVERS--Action on Bond-- Petition. In an action upon a receiver's bond, by the obligee against the principal and sureties thereon, the failure to attach to the petition a copy of the order appointing the receiver does not render it fatal as against a general demurrer.

3. SAME. Petition upon receiver's bond examined, and held to constitute a cause of action as against a general demurrer.

Error from District Court, Stephens County; Frank M. Bailey, Judge.

Action by John Dexter against O. M. Nichols and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. B. Wilkinson, for plaintiffs in error.

J. B. Moore and Womack & Brown, for defendant in error.

DUDLEY, C.

¶1 On June 26, 1911, the defendant in error, plaintiff below, commenced this action in the district court of Stephens county, against the plaintiffs in error, defendants below, upon a receiver's bond executed by the defendant Nichols, as principal, and the defendants Johnson and Gamblin, as sureties, on November 12, 1907, in an action pending in the United States District Court for the Southern District of the Indian Territory, at Ardmore, wherein the plaintiff herein was plaintiff, and J. W. Starr and others were defendants. Issues were joined and the case tried to the court and jury, resulting in a judgment in favor of the plaintiff for $ 605, with interest, from which the defendants have appealed.

¶2 There are eight assignments of error in the petition in error, all of which, except the third, which is, "The court erred in overruling defendants' demurrer to plaintiff's petition," are alleged errors occurring during the trial. The overruling of the motion for a new trial is not assigned as error in the petition in error, and it therefore follows that none of the assignments of error, except the third, can be considered here. Beall v. Mutual Life Ins. Co., 7 Okla. 285, 54 P. 474; Martin et al. v. Gassert, 17 Okla. 177, 87 P. 586; Kimbriel v. Montgomery, 28 Okla. 743, 115 P. 1013; Meyer v. James, 29 Okla. 7, 115 P. 1016; George v. Moore, 32 Okla. 842, 124 P. 36; Turner v. First Nat. Bank, 40 Okla. 498, 139 P. 703; Adams v. Norton et al., 41 Okla. 497, 139 P. 254.

¶3 The only question properly presented for review is the sufficiency of the petition, as against a general demurrer. The petition alleges, in substance: That in October, 1907, the plaintiff commenced an action in the United States Court for the Southern District of the Indian Territory, at Ardmore, against J. W. Starr and others, to recover possession of certain real estate, located in the then Indian Territory, and asked that a receiver be appointed to collect the rents and profits therefrom during the pendency of said action; that, at the time of the commencement of said action, Sam Woods was appointed receiver in said cause, and directed to take possession of said real estate and collect the rents and profits therefrom during said litigation; that he duly qualified as such receiver and entered upon the discharge of his duties. A copy of the petition in said cause, together with a copy of the order appointing Woods as receiver, is attached to said petition. The petition further alleges that Woods continued to act as receiver in said cause until February 7, 1908, at which time, upon the application of the defendants in said cause, he was discharged and the defendant Nichols appointed as receiver in said cause, with directions to take charge of said real estate and collect the rents and profits therefrom during the pendency of said litigation. His bond was fixed at $ 1,200. He executed the same, with the defendants Johnson and Gamblin as sureties. The bond was filed and approved, whereupon he entered upon the discharge of his duties as receiver in said cause. A copy of the bond is attached to the petition. Said bond contains, among others, the following provision:

"Whereas, permission has been granted the principal herein, O. M. Nichols, to execute a bond and have said receiver discharged from the collection of said rents, now, if the said O. M. Nichols shall well and truly collect said rents due and to become due on the lands described in the complaint filed in the above-entitled cause and hold same subject to the order of the court and account for same upon the order of the court, then this bond shall be void; otherwise to remain in full force and effect."

¶4 After the approval of said bond, Nichols, as a receiver, took possession of said real estate, and on December 14, 1910, filed a report, as receiver in said cause, covering the rents collected, showing a balance on hand of $ 45.50. A copy of said report is attached to the petition. Following this, the plaintiff filed written exceptions to said report, and on December 19, 1910, said action was tried, resulting in a judgment in favor of the plaintiff, finding that he was the owner and entitled to the possession of the real estate involved in said action. At the same time, the report of the receiver and the exceptions filed thereto were considered by the court, and a finding made to the effect that said receiver had collected, as rent from said...